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Is Winning an Election a Get-Out-of-Jail-Free Card? · Pod Save America

• 0:20
  Speaker 1: Welcome to Podsafe America. I'm Dan Pfeiffer.
• 0:22
  Speaker 2: And I'm Alyssa Murray.
• 0:23
  Speaker 1: As our listeners know well, Melissa is the co-host of
• 0:25
  Speaker 1: our excellent legal podcast, Strict Scrutiny, a law professor at NYU,
• 0:29
  Speaker 1: and an MSNBC legal analyst. Melissa, it is always great
• 0:32
  Speaker 1: to have you on Pod Save America.
• 0:33
  Speaker 2: Thanks for having me back. Really great to be here.
• 0:35
  Speaker 1: Well, you're one of the smartest people I know, not
• 0:38
  Speaker 1: just on legal issues, but on all things. And we
• 0:39
  Speaker 1: have plenty to talk about in the legal world. And
• 0:41
  Speaker 1: I would say very little of it is good. But
• 0:43
  Speaker 1: let's start with the news because there's a lot out
• 0:45
  Speaker 1: there these days. Before we get into the latest with
• 0:47
  Speaker 1: Trump and his nominees, let's talk about the United Healthcare Killings.
• 0:51
  Speaker 1: This story is showing some real staying power, both for
• 0:53
  Speaker 1: predictable reasons. It's a cinematic murder with spooky clues and
• 0:56
  Speaker 1: a mysterious antihero.
• 0:57
  Speaker 2: I believe a handsome antihero also should be said. I
• 1:01
  Speaker 2: think that is a big part of the staying power.
• 1:04
  Speaker 1: I mean, he seems attractive to me. I'm very comfortable
• 1:06
  Speaker 1: saying that, but to each their own, I would say.
• 1:09
  Speaker 2: Would, yes. Correct. Correct.
• 1:11
  Speaker 1: But also for less predictable ones, namely the way the
• 1:14
  Speaker 1: story has launched a conversation about our for-profit healthcare system. John, John,
• 1:18
  Speaker 1: and Tommy talked about the discourse around the murder on
• 1:20
  Speaker 1: the Tuesday pod, but that was before we knew anything
• 1:22
  Speaker 1: about the accused killer. Do you have a take on
• 1:25
  Speaker 1: this story and why it's become such a cultural moment?
• 1:28
  Speaker 2: Well, I think for all of the reasons that you
• 1:30
  Speaker 2: all have rehearsed on the pod, healthcare sucks. Healthcare sucks
• 1:34
  Speaker 2: in this country. Obamacare was a huge step forward, but
• 1:38
  Speaker 2: it still leaves in place a largely insurance-based system of
• 1:42
  Speaker 2: healthcare provision, which is really difficult for lay people to
• 1:46
  Speaker 2: navigate even in the best of circumstances. And the circumstances
• 1:51
  Speaker 2: of this killing makes clear how many people are just
• 1:56
  Speaker 2: absolutely bedeviled by having to deal with insurance, getting denied
• 2:01
  Speaker 2: insurance coverage for things that they need, whether it's cancer
• 2:05
  Speaker 2: treatment or things for their children, when their children are ill.
• 2:08
  Speaker 2: It's just a really inhumane system.
• 2:10
  Speaker 3: And it.
• 2:12
  Speaker 2: has sparked this conversation in the context of a really
• 2:15
  Speaker 2: inhumane murder because it really goes to some kind of
• 2:20
  Speaker 2: experience that obviously feels universal for a lot of people.
• 2:24
  Speaker 1: I really sort of hate the discourse about the discourse.
• 2:26
  Speaker 1: And so I'm going to stipulate at the beginning of
• 2:29
  Speaker 1: this that murder is bad. Celebrating murder, also bad.
• 2:33
  Speaker 2: Yes.
• 2:34
  Speaker 1: A health care system where the bonuses of the CEO
• 2:38
  Speaker 1: and the value of the stock are tied to denying
• 2:41
  Speaker 1: cancer treatments is also quite bad. But I do think
• 2:45
  Speaker 1: that everyone in politics, and in particular Democrats, should take
• 2:49
  Speaker 1: note of the reaction here. And I don't mean the
• 2:52
  Speaker 1: trolliest people online who are saying the most outrageous things
• 2:56
  Speaker 1: and maybe chasing clout or saying things. I just mean
• 2:59
  Speaker 1: the fact that in a time when it's very hard
• 3:02
  Speaker 1: to capture the nation's attention, this has done so. And
• 3:04
  Speaker 1: that tells us something about how people feel. And it
• 3:07
  Speaker 1: is tied in a lot of ways to I.
• 3:11
  Speaker 2: Think that's exactly right. People are really frustrated. Healthcare provision
• 3:15
  Speaker 2: is at bottom an economic issue. Individuals are bankrupted by
• 3:20
  Speaker 2: their medical debt. The Biden administration was taking steps to
• 3:24
  Speaker 2: deal with that in the at the end of the summer.
• 3:28
  Speaker 2: So it's a big deal. And I do think the
• 3:30
  Speaker 2: fact that the discourse has shifted now that the suspect
• 3:33
  Speaker 2: has been identified and captured and, you know, people are
• 3:37
  Speaker 2: actually talking about other things, a little more humorous, a
• 3:40
  Speaker 2: little more human, like, you know, whether they would put
• 3:42
  Speaker 2: money on his books in prison if he is convicted.
• 3:45
  Speaker 2: And I think that sort of shows, like, people are
• 3:49
  Speaker 2: thinking about this in human terms. I don't think people
• 3:51
  Speaker 2: are discounting that you know, someone has died here or
• 3:53
  Speaker 2: someone who has a family, a wife and children, and
• 3:56
  Speaker 2: this is a tragedy for that family. But I think
• 3:58
  Speaker 2: what some of this discourse is speaking to is that
• 4:01
  Speaker 2: healthcare provision is an actual tragedy for many more Americans too.
• 4:05
  Speaker 1: That's right. And I think it is like healthcare is
• 4:08
  Speaker 1: at the core of this specific issue, but the reaction
• 4:11
  Speaker 1: to me is more, says a little bit more about
• 4:14
  Speaker 1: how people are pissed at the system. And I define
• 4:16
  Speaker 1: the system broadly, includes healthcare companies, includes drug companies, include
• 4:20
  Speaker 1: Wall Street banks. It includes the companies that are price
• 4:23
  Speaker 1: gouging on gas and groceries and eggs and bacon or
• 4:27
  Speaker 1: wherever else. And it includes politicians. It includes the media.
• 4:30
  Speaker 1: It includes Hollywood.
• 4:31
  Speaker 2: It's an anti-institutionalist moment.
• 4:34
  Speaker 1: That's right. And Trump weaponized that in a very cynical
• 4:39
  Speaker 1: and dangerous way. And as Democrats think about our path forward,
• 4:42
  Speaker 1: we have to recognize the moment in which we are existing.
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  Speaker 1: It can't be a moment in which we are defending institutions,
• 4:47
  Speaker 1: that we are the protectors of the status quo. It
• 4:49
  Speaker 1: has to be And I think the reaction here should
• 4:52
  Speaker 1: suggest to us that we need to be bolder, bolder
• 4:55
  Speaker 1: in our messaging, bolder in our response, bolder in our
• 4:57
  Speaker 1: policy prescriptions to speak to that moment. Because if we don't,
• 5:01
  Speaker 1: these are the moments in which historically demagogues and authoritarians
• 5:04
  Speaker 1: have taken power. We've just had that happen here. And
• 5:07
  Speaker 1: so we have to understand that a normal, this tells us,
• 5:10
  Speaker 1: the reaction to this is not normal. And it tells
• 5:12
  Speaker 1: us that we need something more than a typical response
• 5:15
  Speaker 1: to it.
• 5:16
  Speaker 2: Yeah, I think that's right. And I think one thing
• 5:18
  Speaker 2: that's been really interesting is discussion over Obamacare in the
• 5:21
  Speaker 2: wake of this. And, you know, I'm an older person
• 5:25
  Speaker 2: at this point. So when Obamacare was introduced in 2009
• 5:28
  Speaker 2: as a policy prescription and then actually enacted, it was
• 5:33
  Speaker 2: actually radical. I think now, many years later, yes, we
• 5:37
  Speaker 2: can understand that it was essentially a kind of reform
• 5:40
  Speaker 2: of the existing system. But That was a really big deal.
• 5:43
  Speaker 2: So I don't want to lose sight of that. But
• 5:45
  Speaker 2: it's been a number of years. It's been decades. It
• 5:47
  Speaker 2: feels like people are on board with Obamacare. Maybe this
• 5:51
  Speaker 2: is the moment to push even further and to think
• 5:53
  Speaker 2: about a system that would address some of the things
• 5:57
  Speaker 2: that even Obamacare cannot.
• 5:59
  Speaker 1: Yeah. Obamacare is at its most popular. You're exactly right.
• 6:02
  Speaker 1: It's hard for people who were not around in politics
• 6:05
  Speaker 1: or paying attention to politics back then to understand how
• 6:07
  Speaker 1: radical an idea it was because the core principle of
• 6:10
  Speaker 1: Obamacare for as imperfect as the process was to get
• 6:13
  Speaker 1: it done, was that there is a right to affordable
• 6:17
  Speaker 1: health insurance in this country. It did not achieve that
• 6:19
  Speaker 1: for every single person, but that was the goal. And
• 6:21
  Speaker 1: there are reasons it didn't. The Supreme Court made it
• 6:22
  Speaker 1: worse by affecting the Medicaid mandate. Republican governors made it
• 6:27
  Speaker 1: worse by refusing Medicaid expansion in their states. There were
• 6:31
  Speaker 1: problems in how the law was written. There were problems
• 6:33
  Speaker 1: in the implementation of it. But it changed the conversation.
• 6:36
  Speaker 1: And now the question is, what comes next? And I
• 6:39
  Speaker 1: hope that as a party, Democrats engage in that in
• 6:42
  Speaker 1: a bold way. And it's not as simple as Obamacare
• 6:45
  Speaker 1: plus to Medicare for all, right? There's got to be something.
• 6:49
  Speaker 1: There's got to be a broader conversation includes everything in
• 6:51
  Speaker 1: the middle.
• 6:52
  Speaker 2: Yeah, I think that's exactly right.
• 6:53
  Speaker 1: Independent journalist Ken Klippenstein published the shooter's full manifesto, which
• 6:57
  Speaker 1: is really more of a memo, I would say. I
• 6:58
  Speaker 1: don't know if you read it, but what did you
• 7:00
  Speaker 1: make of the decision to publish it versus mainstream media
• 7:03
  Speaker 1: outlets' initial refusal to do so?
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  Speaker 2: So I actually had to dig around and find Ken
• 7:07
  Speaker 2: Klippenstein's substack in order to read this, which I have
• 7:11
  Speaker 2: to say, I kind of expected more of the media.
• 7:14
  Speaker 2: I don't think you have to glorify it, but it
• 7:15
  Speaker 2: does seem newsworthy to publish it in full. And maybe
• 7:19
  Speaker 2: you can have disclaimers around it, sort of explaining its provenance,
• 7:24
  Speaker 2: whether it can be attributed to the suspect, all of
• 7:27
  Speaker 2: those things. But it does seem like there is a
• 7:30
  Speaker 2: public interest in having it in full. And I did
• 7:33
  Speaker 2: read it. And I think it accords with this moment
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  Speaker 2: where we're talking about what is the average person's experience
• 7:41
  Speaker 2: of health insurance. And here is someone who is really
• 7:45
  Speaker 2: railing against the system and this institution because he's had
• 7:48
  Speaker 2: apparently a really terrible time.
• 7:51
  Speaker 1: Yeah. I don't really have a super hot take on
• 7:54
  Speaker 1: whether publishing is the right thing or the wrong thing.
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  Speaker 1: I am generally of the view that this idea that
• 7:59
  Speaker 1: the mainstream media can serve as gatekeepers to protect people
• 8:02
  Speaker 1: from information is long past because just the words Ken
• 8:06
  Speaker 1: Clemency and Substack suggest that the New York Times, the
• 8:08
  Speaker 1: Washington Post, the Wall Street Journal aren't the arbiters of
• 8:11
  Speaker 1: what is journalism, what people get. I'm sympathetic to the
• 8:14
  Speaker 1: long-held view that publishing these manifestos can inspire copycats. And
• 8:19
  Speaker 1: so everyone can make their own decision about it, but
• 8:22
  Speaker 1: it's just this idea that you're keeping it from the public.
• 8:26
  Speaker 1: I remember thinking about this same conversation around the publication
• 8:28
  Speaker 1: of the Steele dossier.
• 8:29
  Speaker 3: Yeah.
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  Speaker 1: Now that we're just fully back in 2017 mode here,
• 8:35
  Speaker 1: it's going to get out there. And sometimes maybe it
• 8:37
  Speaker 1: makes sense for larger journalistic institutions who have the capacity
• 8:42
  Speaker 1: to provide context and research with it can do that
• 8:47
  Speaker 1: as opposed to trying to pretend like it doesn't exist.
• 8:49
  Speaker 1: So if anyone wants to read it, they're going to
• 8:51
  Speaker 1: be able to read it, whether the Washington Post wants
• 8:52
  Speaker 1: them to or not, or I don't want you to
• 8:55
  Speaker 1: blame the Post, but any media outlet.
• 8:56
  Speaker 2: Well, I mean, I think that's a great point. I mean,
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  Speaker 2: one of the things I think the mainstream media did
• 9:00
  Speaker 2: very well, for example, with all of the different Trump
• 9:02
  Speaker 2: indictments is to provide a guide to lay readers about
• 9:08
  Speaker 2: how to contextualize and interpret these documents that might feel
• 9:11
  Speaker 2: very unfamiliar to individuals who aren't lawyers. I mean, I
• 9:15
  Speaker 2: think there could be a similar kind of contextualization, as
• 9:19
  Speaker 2: you say, for something like this. There's all this discussion
• 9:22
  Speaker 2: about the Unabomber's manifesto and the alleged suspect's connections to
• 9:28
  Speaker 2: that writing. I mean, all of that could be, I think,
• 9:31
  Speaker 2: importantly contextualized by journalists, by reporters in ways that advance
• 9:37
  Speaker 2: the discourse rather than allowing more disinformation to flourish.
• 9:40
  Speaker 1: Yeah, just you have expertise. When there's this big debate
• 9:45
  Speaker 1: about Elon Musk is on Twitter or saying, you're all
• 9:48
  Speaker 1: the media now. And Jim Vande Hei of Axios is
• 9:51
  Speaker 1: giving these thundering speeches saying that journalism is a special thing.
• 9:54
  Speaker 1: And journalism is a skill set.
• 9:57
  Speaker 2: Show me.
• 9:57
  Speaker 1: Show your work. Is a skilled experience. That's right. Use it, right?
• 10:00
  Speaker 1: That's your competitive advantage against anyone with access to the
• 10:04
  Speaker 1: internet and a Twitter account or a sub stack is
• 10:07
  Speaker 1: to use your expertise, use your sources, your resources, your
• 10:10
  Speaker 1: disposable to contextualize things. And so I think they probably
• 10:13
  Speaker 1: missed the boat here. Okay, let's pivot to the more
• 10:16
  Speaker 1: pedantic news of a bunch of clowns joining the cabinet. Okay,
• 10:20
  Speaker 1: this time last week, it seemed like Fox Weekend anchor
• 10:23
  Speaker 1: Pete Hegseth was about to follow Matt Gaetz and become
• 10:25
  Speaker 1: the second major Trump-nominated withdrawal. But the tides have turned.
• 10:29
  Speaker 1: Iowa Senator Joni Ernst, who is a key voice on
• 10:32
  Speaker 1: defense issues, who had been openly skeptical of Hegseth, put
• 10:35
  Speaker 1: out a statement on Monday saying she supports him, at
• 10:37
  Speaker 1: least for now. And as of today, it looks like
• 10:40
  Speaker 1: Steve Doocy's understudy is on the path to becoming the
• 10:42
  Speaker 1: Secretary of Defense. According to Mark Caputo at The Bulwark,
• 10:45
  Speaker 1: Ernst changed her mind after coming under intense pressure from
• 10:48
  Speaker 1: Trump's MAGA allies. If Hegseth can get through, despite his
• 10:52
  Speaker 1: inexperience and the reams of stories about his personal failings,
• 10:55
  Speaker 1: does this mean that the Senate is basically just going
• 10:57
  Speaker 1: to be a revolving door for all of Trump's nominees?
• 11:00
  Speaker 2: Probably, yes. I mean, probably yes. You know, I actually
• 11:06
  Speaker 2: said this on Strict Scrutiny and, you know, caught a
• 11:09
  Speaker 2: lot of strays for it. But I think the fact
• 11:11
  Speaker 2: that Matt Gaetz sort of bowed out, rightly so. And
• 11:17
  Speaker 2: Pam Bondi came in and was just not Matt Gaetz. And,
• 11:20
  Speaker 2: you know, people aren't really kicking the tires on that.
• 11:23
  Speaker 2: There's been discussions of how much of a loyalist she
• 11:26
  Speaker 2: has been on what she has done to advance the
• 11:28
  Speaker 2: Trump cause as Attorney General of Florida, but not the
• 11:31
  Speaker 2: kind of deep, deep digging that you would expect. And
• 11:35
  Speaker 2: I think that's largely because folks are tired. I mean,
• 11:37
  Speaker 2: like they are flooding the zone with a lot of stuff.
• 11:41
  Speaker 2: And I think expecting the Everyone to get like a
• 11:46
  Speaker 2: full and proper vetting that is incredibly skeptical and high quality,
• 11:51
  Speaker 2: I think is just going to be unlikely. And that's
• 11:53
  Speaker 2: really disappointing. I mean, that is what the Senate is
• 11:55
  Speaker 2: supposed to do. But as a general matter, the Senate
• 11:58
  Speaker 2: isn't dealing with, on a regular basis, nominees of this caliber.
• 12:03
  Speaker 2: I mean, like all of them are really, really questionable.
• 12:06
  Speaker 2: And I just don't think that's business as usual. I
• 12:09
  Speaker 2: will say one thing for Donald Trump that, you know,
• 12:11
  Speaker 2: is worth mentioning is this is a man who rewards loyalty.
• 12:16
  Speaker 2: And I'm not saying the Democrats should do it, but
• 12:19
  Speaker 2: it's really interesting to me how the Democrats are always like,
• 12:21
  Speaker 2: who's the best person for this job? Like meritocracy, where
• 12:25
  Speaker 2: he's just like, who's my guy? Who's been here for me?
• 12:28
  Speaker 2: And who am I going to reward? Like Harmeet Dhillon
• 12:31
  Speaker 2: to head civil rights in the DOJ. It's not because
• 12:34
  Speaker 2: she has been good on traditional civil rights. It's because
• 12:38
  Speaker 2: she's been a loyalist and she's been good on the
• 12:40
  Speaker 2: Trump administration's vision of civil rights, which is about equal
• 12:44
  Speaker 2: rights for aggrieved, outspoken conservatives. And he rewards that.
• 12:50
  Speaker 3: Yeah.
• 12:50
  Speaker 1: I'd say a couple of things on this. One, you're
• 12:52
  Speaker 1: never going to make money betting on the courage and
• 12:55
  Speaker 1: integrity of Senate Republicans, right? Most of these people are always,
• 12:58
  Speaker 1: are going to get through.
• 12:58
  Speaker 2: Damn it. That's how I was going to send my
• 12:59
  Speaker 2: kids to college, Dan.
• 13:01
  Speaker 1: Yes, it is not. It is basically you're in the
• 13:05
  Speaker 1: house always wins in that game. It's like playing slots
• 13:07
  Speaker 1: in Vegas. And, um, And so most of the people
• 13:10
  Speaker 1: are always going to get through no matter how bad.
• 13:12
  Speaker 1: I mean, a bunch of really bad Trump appointees got
• 13:14
  Speaker 1: through last time. Betsy DeVos, Jeff Sessions. Most of them
• 13:19
  Speaker 1: are going to get through here. It would be notable
• 13:21
  Speaker 1: if none of– people rarely get voted down. They just
• 13:24
  Speaker 1: generally have to drop out before the process takes. And
• 13:26
  Speaker 1: my imagination is these Republicans feel like they have– they
• 13:30
  Speaker 1: could maybe oppose one or two, maybe. But what's the
• 13:33
  Speaker 1: upside for them?
• 13:35
  Speaker 2: Well, don't you think the Senate really relies on journalism
• 13:38
  Speaker 2: to do a lot of the digging and the surfacing
• 13:40
  Speaker 2: of all the crap so that there is pressure on
• 13:44
  Speaker 2: the nominee to sort of like come to terms with
• 13:45
  Speaker 2: the fact that they are abjectly unqualified and not great
• 13:49
  Speaker 2: for this position and bow out? And it just seems
• 13:51
  Speaker 2: like the more stuff that gets surfaced, people are just
• 13:53
  Speaker 2: like digging in and like there is no shame.
• 13:57
  Speaker 1: Well, this does speak to the diminishing influence of the
• 14:02
  Speaker 1: media industry. In terms of holding at least Republicans accountable.
• 14:07
  Speaker 2: Yeah.
• 14:09
  Speaker 1: The fact that the New York Times or CNN or
• 14:11
  Speaker 1: the Washington Post surfaced some information about Pete Hegsath or
• 14:15
  Speaker 1: Pam Bondi or someone else is often seen as evidence
• 14:20
  Speaker 1: of their fitness for the job, not the opposite. Because
• 14:23
  Speaker 1: in this world, those are the bad guys. And Republicans
• 14:26
  Speaker 1: really are defined by their enemies.
• 14:28
  Speaker 2: Yeah.
• 14:28
  Speaker 1: And if the New York Times is against you and
• 14:30
  Speaker 1: the CNN is against you, that's validation of your bona
• 14:33
  Speaker 1: fides as opposed to the opposite.
• 14:35
  Speaker 2: Do you remember the days when Zoe Baird and Kimba
• 14:39
  Speaker 2: Wood could get just completely axed simply because they hadn't
• 14:43
  Speaker 2: paid taxes on their nannies? I mean, how quaint does
• 14:47
  Speaker 2: that seem right now? That's nothing.
• 14:49
  Speaker 1: My former boss, Tom Daschle, who was... nominated to be
• 14:53
  Speaker 1: the Secretary of Health and Human Services of Barack Obama,
• 14:55
  Speaker 1: had to drop out because the law firm for which
• 15:00
  Speaker 1: he worked provided him a free car service as part
• 15:03
  Speaker 1: of his salary, as part of his benefits package, and
• 15:06
  Speaker 1: he did not cite that as income on his taxes.
• 15:09
  Speaker 1: And he was ditched by Democrats. Now, what is different
• 15:14
  Speaker 1: here than the Obama age and the Clinton age is
• 15:17
  Speaker 1: that now the filibuster does not exist for executive appointments.
• 15:20
  Speaker 3: Right.
• 15:21
  Speaker 1: So we had 59 Senate seats back then when Obama
• 15:23
  Speaker 1: was trying to get Daschle through. We would need at
• 15:25
  Speaker 1: least one Republican to do it. If you lose a
• 15:27
  Speaker 1: couple of Democrats, you're toast. Trump only needs 50 of 53.
• 15:30
  Speaker 1: So his bar of success is lower. But it seems
• 15:34
  Speaker 1: like most people are going to get through. Maybe Tulsi
• 15:35
  Speaker 1: Gabbard will be one. And what's interesting, I think what's
• 15:38
  Speaker 1: interesting in the Ernst thing is that Trump's theory and
• 15:42
  Speaker 1: the theory of his mega allies like Steve Bannon and
• 15:44
  Speaker 1: Charlie Kirk is that making Ernst publicly embarrass herself sends
• 15:48
  Speaker 1: the message that resistance is futile.
• 15:50
  Speaker 2: No, I think that's exactly right, which is so unfortunate
• 15:53
  Speaker 2: because say what you will about Joni Ernst, and there's
• 15:57
  Speaker 2: a lot you could say, she has actually been really
• 16:01
  Speaker 2: good about advancing this question of how the military can
• 16:05
  Speaker 2: address and rid itself of sexual violence. And this is
• 16:10
  Speaker 2: a terrible stain on that legacy.
• 16:12
  Speaker 1: The important context for Ernst's decision is that she is
• 16:16
  Speaker 1: up for reelection in 2026.
• 16:16
  Speaker 2: Yeah.
• 16:18
  Speaker 1: In a state that Donald Trump has won by double
• 16:20
  Speaker 1: digits the last three elections. She is in very little danger,
• 16:25
  Speaker 1: absent some cataclysmic change in the political environment, to lose
• 16:29
  Speaker 1: re-election to a Democrat.
• 16:31
  Speaker 2: It's the primary. But she could. Yeah.
• 16:32
  Speaker 1: She could lose in the primary. And that's what these
• 16:34
  Speaker 1: people are threatening, is that if she opposes Trump, she
• 16:38
  Speaker 1: becomes an anti-Trump person. She becomes... this cycle's Jeff Flake
• 16:41
  Speaker 1: or Mitt Romney, she's not going to make it.
• 16:44
  Speaker 2: No, they will find some car dealer in Dubuque and
• 16:47
  Speaker 2: they will run him against her and Donald Trump will
• 16:49
  Speaker 2: come out for him and he'll win and she'll be toast.
• 16:52
  Speaker 1: And maybe he'll win, right? Like, you know, Brian, Brian
• 16:55
  Speaker 1: Kemp would suggest otherwise, but like that, that puts her,
• 16:58
  Speaker 1: that's her only, the only risk to her reelection is
• 17:01
  Speaker 1: in the primary.
• 17:02
  Speaker 2: Brian Kemp is also a dude, so she also has
• 17:04
  Speaker 2: a gender problem.
• 17:05
  Speaker 1: That's true. That's true. And she, Iowa does not, although
• 17:07
  Speaker 1: it has gotten better, a great history of electing women statewide.
• 17:11
  Speaker 1: But I think what is interesting here on the strategy
• 17:13
  Speaker 1: is that Susan Collins and Lisa Murkowski have very different
• 17:17
  Speaker 1: political calculuses than Joni Ernst. They're sort of defined as
• 17:21
  Speaker 1: not anti-Trump. Murkowski is somewhat anti-Trump, but not pro-Trump, right?
• 17:26
  Speaker 1: Like they're somewhat defined by their opposition to Trump on
• 17:28
  Speaker 1: some things, not named Brett Kavanaugh. And then Tom Tillis
• 17:32
  Speaker 1: is up for reelection in a state where Republicans, he
• 17:34
  Speaker 1: has more leverage because if they ditch... uh, Tom Tillis
• 17:38
  Speaker 1: for the car dealer from, uh, Wilmington from Wilmington, North Carolina,
• 17:44
  Speaker 1: that person could very well lose why Tom Tillis would
• 17:46
  Speaker 1: be favored in that race, right? Like they, they saw that,
• 17:49
  Speaker 1: that in a, in Iowa, whoever's on the Republican ticket
• 17:52
  Speaker 1: is almost certainly winning in North Carolina. That's less of
• 17:55
  Speaker 1: a guarantee, but you know, or do you think there
• 17:57
  Speaker 1: are some downsides to strategy, the bullying strategy?
• 18:01
  Speaker 2: No, because it's working, right? I mean, like, this is
• 18:04
  Speaker 2: what they do. And it works. The real question is,
• 18:09
  Speaker 2: would it work for everyone? Like, Democrats, sometimes it works,
• 18:12
  Speaker 2: but more often, it doesn't. But it seems to work
• 18:15
  Speaker 2: for them. And again, I think Trump is a kind
• 18:18
  Speaker 2: of singular figure in the Republican Party. And the idea
• 18:23
  Speaker 2: of him against you, I think really does inspire fear
• 18:26
  Speaker 2: among some of these sort of rank and file Republicans,
• 18:30
  Speaker 2: and they're just loathe to step out of line. And
• 18:33
  Speaker 2: I think we're seeing that here.
• 18:35
  Speaker 1: Part of the reason why this strategy likely works, although
• 18:37
  Speaker 1: he has little margin for error, because Collins, Murkowski, and
• 18:42
  Speaker 1: Mitch McConnell, who's never running for anything again, and doesn't
• 18:45
  Speaker 1: exactly love Trump, that puts you at 50 exactly. So
• 18:48
  Speaker 1: then you only have one more to lose. So they're
• 18:51
  Speaker 1: still operating with little margin for error. But the reason
• 18:53
  Speaker 1: why it works better than it used to is the
• 18:57
  Speaker 1: only Senate Republican representing a state that Kamala Harris won
• 19:00
  Speaker 1: is Susan Collins. And so just you have a lot
• 19:05
  Speaker 1: of leverage in that situation. And most of them are
• 19:07
  Speaker 1: representing states that Donald Trump won by large margins. So
• 19:12
  Speaker 1: they don't feel pressure. Almost no one ever feels pressure
• 19:15
  Speaker 1: from the middle anymore. They only feel it from their
• 19:17
  Speaker 1: ideological flank on the Republican side. We still have a
• 19:19
  Speaker 1: bunch of Democrats who are in battleground states who are
• 19:21
  Speaker 1: in a different situation.
• 19:24
  Speaker 2: No, I mean, that's the way it is with judges too.
• 19:26
  Speaker 2: I mean, the fact that you only need a majority,
• 19:29
  Speaker 2: a simple majority to confirm a judge means that they
• 19:32
  Speaker 2: can advance these really ideological picks and all they have
• 19:36
  Speaker 2: to do is just like shore up their base and
• 19:37
  Speaker 2: they can get people in line because they do have
• 19:40
  Speaker 2: this following in these individual states. And if you go
• 19:43
  Speaker 2: against them, they'll run someone in a primary and you're toast.
• 19:46
  Speaker 1: And I think this.
• 19:47
  Speaker 2: Partly explains Susan Collins and Brett Kavanaugh's entirely, but it
• 19:51
  Speaker 2: was a harbinger, I think, of things to come.
• 19:54
  Speaker 1: I'm sure that the way in which the Republicans bullied
• 19:57
  Speaker 1: Joni Ernst is probably very frustrating to Democrats who wish
• 20:00
  Speaker 1: Biden could have done something similar to Joe Manchin.
• 20:03
  Speaker 3: Yeah.
• 20:04
  Speaker 1: But it doesn't really work that way because Joe Manchin's
• 20:06
  Speaker 1: in a state that Donald Trump had won by nearly
• 20:08
  Speaker 1: 30 points the time before. And so he could easily
• 20:11
  Speaker 1: switch parties, which did actually happen once for, this is
• 20:14
  Speaker 1: where I am dating myself. But in the year 2001,
• 20:18
  Speaker 1: George Bush was super pissed at Vermont Senator Jim Jeffords
• 20:22
  Speaker 1: for opposing him on taxes. So they attacked him and
• 20:27
  Speaker 1: in the ultimate pettiness, disinvited him from the White House
• 20:30
  Speaker 1: ceremony honoring the teacher of the year who happened to
• 20:32
  Speaker 1: be from Vermont and And Jim Jeffords switched parties and
• 20:35
  Speaker 1: gave the majority in the Senate to the Democrats. Yeah.
• 20:37
  Speaker 2: I remember when that happened.
• 20:38
  Speaker 1: I don't think that's going to happen in this case,
• 20:39
  Speaker 1: but there are risks to it.
• 20:41
  Speaker 3: Yeah.
• 20:41
  Speaker 1: Which is sort of why he treats Susan Collins a
• 20:44
  Speaker 1: little bit with kid gloves, because not that I think
• 20:46
  Speaker 1: she's going to leave parties, but she has leverage that
• 20:48
  Speaker 1: Joni Ernst does not.
• 20:49
  Speaker 2: That was a really great moment. That was truly the
• 20:51
  Speaker 2: fuck around of times, the find out of times. And
• 20:55
  Speaker 2: I wish we could see that again. That's good stuff.
• 20:57
  Speaker 2: Good stuff.
• 20:58
  Speaker 3: What?
• 20:58
  Speaker 1: That was... You know, like six months before 9-11. I
• 21:01
  Speaker 1: remember that. That was probably the last moment of the 90s, right?
• 21:05
  Speaker 1: Even though we were well into 2001, that was the
• 21:06
  Speaker 1: end of the 90s.
• 21:07
  Speaker 2: Yeah, I remember where I was.
• 21:08
  Speaker 1: At least 90s politics.
• 21:09
  Speaker 2: Like someone was like, and Jim Jeffords is going to
• 21:11
  Speaker 2: a caucus with the Democrats. And they were so excited.
• 21:14
  Speaker 1: Yes. We booked this engagement a long time ago. You've
• 21:28
  Speaker 1: been on our calendar to be on Pod Save America.
• 21:30
  Speaker 1: And I know you were crushed not to be able
• 21:32
  Speaker 1: to come on to talk about the prospect of Matt
• 21:34
  Speaker 1: Gaetz for Attorney General.
• 21:35
  Speaker 3: But.
• 21:36
  Speaker 1: He does have a consolation prize for you and America.
• 21:38
  Speaker 1: Let's take a listen.
• 21:39
  Speaker 3: I could not be more excited to join the One
• 21:42
  Speaker 3: America News family. The best reporting, the best analysis, and
• 21:46
  Speaker 3: the most in-depth coverage of the Trump administration is going
• 21:49
  Speaker 3: to come from our team. I've got the sources. I've
• 21:52
  Speaker 3: got the insights. And there is such a spirit of
• 21:55
  Speaker 3: optimism to unlock the opportunity of America. There's no place
• 21:59
  Speaker 3: that's going to cover it better than One America News.
• 22:02
  Speaker 1: Melissa, how excited are you for anchorman Matt.
• 22:07
  Speaker 2: Not very. I will say, I didn't realize that's what
• 22:11
  Speaker 2: OANN stood for. I've just been calling it OANN, and
• 22:15
  Speaker 2: I didn't realize it was One America News Network. So
• 22:18
  Speaker 2: thank you. That was good information I didn't know, and
• 22:21
  Speaker 2: now I do, and I can't unhear it. But yeah,
• 22:25
  Speaker 2: I actually preferred him better on the Cameo platform.
• 22:30
  Speaker 1: Are you thinking of getting yourself a Matt Gaetz message
• 22:33
  Speaker 1: for some of your Strix co-hosts?
• 22:34
  Speaker 2: Well, Leah Lipman has an upcoming birthday, and I did
• 22:40
  Speaker 2: submit a request. Oh, interesting. Unclear if it will be granted, but.
• 22:44
  Speaker 1: Yes, we'll have to find out what's in his OANN contract,
• 22:48
  Speaker 1: I guess.
• 22:48
  Speaker 2: I mean, yeah. But I do think, you know, that
• 22:53
  Speaker 2: was a good platform for him. As the ladies on
• 22:55
  Speaker 2: Hysteria said, Cameo is like OnlyFans for ghouls, and I
• 22:59
  Speaker 2: kind of like that.
• 23:01
  Speaker 1: That's very good. I think it's just– it's probably– like
• 23:05
  Speaker 1: this is ridiculous. He is ridiculous. If I were to
• 23:09
  Speaker 1: try to divine some larger point out of Matt Gaetz
• 23:13
  Speaker 1: ending up on OAN at the end of this, which
• 23:16
  Speaker 1: we should note is the third tier right-wing pro-Trump network.
• 23:21
  Speaker 1: It's a distant third to Fox and Newsmax. So you
• 23:26
  Speaker 1: are far down the line here. It probably says something
• 23:29
  Speaker 1: about where political power– exists in the Republican Party, that
• 23:33
  Speaker 1: he is more likely to build a following and maintain
• 23:36
  Speaker 1: his relevance doing right-wing propaganda than some other, than running,
• 23:41
  Speaker 1: being at a think tank or running for a local
• 23:43
  Speaker 1: office or something else, is that this is, the consolation
• 23:46
  Speaker 1: prize for being Attorney General is, news anchor is, just
• 23:50
  Speaker 1: kind of, probably does underscore the idea that, and this is,
• 23:53
  Speaker 1: Gates has always understood this, that attention is power in
• 23:56
  Speaker 1: MAGA politics, so he's looking for attention.
• 23:59
  Speaker 2: Don't count out One American News Network. I think this
• 24:02
  Speaker 2: is actually a very savvy move for them to build
• 24:04
  Speaker 2: their audience. They're making a move to be a player,
• 24:08
  Speaker 2: watch this space. And I don't say that with any admiration.
• 24:12
  Speaker 2: I genuinely think that's likely to happen.
• 24:13
  Speaker 1: I would love to know what he's getting paid for that.
• 24:16
  Speaker 2: I think, well, I mean, he's already wealthy. He comes
• 24:22
  Speaker 2: from a wealthy Florida family. And he probably doesn't need it,
• 24:26
  Speaker 2: but I'm sure that they are paying him enough to
• 24:28
  Speaker 2: make this worth his while. I mean, this is a
• 24:29
  Speaker 2: nine to five, like he's getting paid.
• 24:32
  Speaker 1: I kind of thought they had disappeared because when they
• 24:36
  Speaker 1: were kicked off DirecTV back in the day, there's another
• 24:38
  Speaker 1: 2017 moment, but I sort of thought, oh, and it
• 24:42
  Speaker 1: was sort of like on the downward slope, but maybe
• 24:44
  Speaker 1: this is their comeback.
• 24:45
  Speaker 2: There is a redemption arc here, like redemption in the
• 24:48
  Speaker 2: loosest sense of the word. And again, I say, watch
• 24:51
  Speaker 2: this space.
• 24:53
  Speaker 1: All right. We will do so.
• 24:54
  Speaker 3: Okay.
• 24:54
  Speaker 1: One other Trump appointment I want to get your take on.
• 24:57
  Speaker 1: We learned yesterday evening that the next ambassador to Greece
• 24:59
  Speaker 1: would be none other than Kim Guilfoyle. The appointment comes
• 25:03
  Speaker 1: after a report in the New York Post that Guilfoyle
• 25:05
  Speaker 1: and her fiance, Donald Trump Jr., broke up after several years.
• 25:09
  Speaker 1: I know you, like me, are a fan of reality TV,
• 25:12
  Speaker 1: and this has real Bravo vibes. So let me clear
• 25:14
  Speaker 1: out the space and hear your thoughts on Kim Guilfoyle,
• 25:17
  Speaker 1: Greek ambassador.
• 25:18
  Speaker 2: I'm so glad you asked this.
• 25:20
  Speaker 1: This was.
• 25:22
  Speaker 2: first of all, why Greece, right? Was Percy Jackson unavailable?
• 25:26
  Speaker 2: Does she have a connection to Greece? I don't know.
• 25:28
  Speaker 2: But I think you're exactly right. If she is ready,
• 25:31
  Speaker 2: this is an amazing Bravo show about a plucky television
• 25:37
  Speaker 2: journalist teetering around Athens in extraordinarily high heels and, you know,
• 25:42
  Speaker 2: putting back together the shards of her broken heart after
• 25:46
  Speaker 2: a tumultuous relationship and breakup. Like, this is going to
• 25:49
  Speaker 2: be fantastic. Like, if she can lean into it, like,
• 25:52
  Speaker 2: you can have her setting up the embassy in Athens,
• 25:55
  Speaker 2: hosting all of these parties, like, you know, kebab night.
• 25:59
  Speaker 2: It would be fantastic. And I would watch. Like, 10
• 26:02
  Speaker 2: out of 10 would watch. And yeah, like, this is
• 26:06
  Speaker 2: a consolation prize. I think they think it's a consolation prize.
• 26:09
  Speaker 2: I'm like, girl, this is your redemption arc. Like, this
• 26:12
  Speaker 2: is the best thing that could happen to you. Like,
• 26:16
  Speaker 2: Being ambassador to Greece is a zillion times better than
• 26:18
  Speaker 2: being Mrs. Donald Trump Jr.
• 26:19
  Speaker 1: Well, I would definitely stipulate that that is probably true.
• 26:23
  Speaker 2: Probably.
• 26:25
  Speaker 1: This is the Bravo version of the Netflix show, The Diplomat.
• 26:31
  Speaker 1: I also think there's a little bit of hush money here. Like,
• 26:34
  Speaker 1: who knows? What she knows.
• 26:36
  Speaker 2: Oh, yeah, yeah.
• 26:37
  Speaker 1: Who knows what she knows? She's been around everything. She
• 26:39
  Speaker 1: was accused of some sketchy, involved in some sketchy fundraising.
• 26:42
  Speaker 2: The best is yet to come. The best is yet
• 26:44
  Speaker 2: to come.
• 26:45
  Speaker 1: And this is a woman who went from being married
• 26:47
  Speaker 1: to Gavin Newsom to almost married to Donald Trump Jr.
• 26:49
  Speaker 1: Who knows what Chapter 3 is here, right? So you
• 26:52
  Speaker 1: can stick her in Greece for a few years.
• 26:53
  Speaker 2: It's only going up, right?
• 26:54
  Speaker 1: Yes. I think they are probably grateful she accepted this
• 26:57
  Speaker 1: job because who knows what she was going to say.
• 26:58
  Speaker 1: Because if you– we don't need to get into the
• 27:00
  Speaker 1: gossip here, but if you read the New York Post report,
• 27:02
  Speaker 1: Donald Trump Jr. has moved on quickly.
• 27:05
  Speaker 2: Yes. To a younger model.
• 27:08
  Speaker 1: It seems to be an apple not falling far from
• 27:11
  Speaker 1: the tree trait there.
• 27:12
  Speaker 2: I mean– I think this is great for her. It's
• 27:15
  Speaker 2: probably a better outcome than she deserves.
• 27:20
  Speaker 1: That's for sure.
• 27:20
  Speaker 3: Okay.
• 27:21
  Speaker 1: All right. Trump's threat on Meet the Press this weekend
• 27:24
  Speaker 1: to jail members of the January 6th committee has raised
• 27:27
  Speaker 1: pressure on the Biden White House to consider some sort
• 27:29
  Speaker 1: of preemptive pardons for people like Anthony Fauci, Liz Cheney,
• 27:32
  Speaker 1: and anyone else who's on Kash Patel's literal enemies list.
• 27:35
  Speaker 1: We've talked about the politics of these pardons on recent pods,
• 27:38
  Speaker 1: but it probably makes sense for us to get thoughts
• 27:40
  Speaker 1: from an actual legal expert. So let's start with the basics.
• 27:43
  Speaker 1: Can a president really pardon people for crimes for which
• 27:46
  Speaker 1: they have not been charged?
• 27:48
  Speaker 2: Yes. See Gerald Ford pardoning Richard Nixon.
• 27:51
  Speaker 1: Yes.
• 27:52
  Speaker 2: Like very recent example of this. There is a Supreme
• 27:55
  Speaker 2: Court case from 1866 called Ex parte Garland that basically
• 28:00
  Speaker 2: says the president's authority to pardon is unlimited except in
• 28:03
  Speaker 2: cases of impeachment. So you can't just sort of pardon
• 28:07
  Speaker 2: for things for which the president has been impeached. But
• 28:10
  Speaker 2: It can otherwise extend to every offense known to the
• 28:13
  Speaker 2: law and able to be exercised either before legal proceedings
• 28:15
  Speaker 2: are taken or during the pendency of legal proceedings or
• 28:19
  Speaker 2: after conviction and judgment, which is usually the case. But again,
• 28:23
  Speaker 2: Ford pardoned Nixon before Nixon had been formally convicted or
• 28:28
  Speaker 2: even indicted on any crime. And again, it was sort
• 28:29
  Speaker 2: of to clear the air, like end this long national nightmare,
• 28:33
  Speaker 2: as Ford said. But, you know, there is an example.
• 28:36
  Speaker 2: To be very clear, this question of a preemptive pardon
• 28:40
  Speaker 2: of that sort has never been confirmed or blessed by
• 28:44
  Speaker 2: the United States Supreme Court. So there may be some
• 28:49
  Speaker 2: question of first impression, were this to be challenged? Again,
• 28:52
  Speaker 2: the Ford pardon of Nixon was never challenged and did
• 28:55
  Speaker 2: not make it to the court. But There is a
• 28:57
  Speaker 2: lot of case law that suggests that the pardon power
• 29:00
  Speaker 2: is broad, is absolute. The most recent of this case
• 29:03
  Speaker 2: law is the immunity decision from last summer that said
• 29:06
  Speaker 2: as much. So, you know, yes, I think Donald Trump
• 29:10
  Speaker 2: could do this. I think Joe Biden could do this.
• 29:12
  Speaker 2: And we'll see what the Supreme Court has to say
• 29:15
  Speaker 2: about it. I imagine it will. It might depend. The
• 29:18
  Speaker 2: court's The court's response might depend on whether a Democratic
• 29:21
  Speaker 2: or Republican president is advancing. No, no. I mean, I
• 29:25
  Speaker 2: know it.
• 29:25
  Speaker 1: Don't be so cynical. I know.
• 29:27
  Speaker 2: I know. I'm so jaded in my dotage.
• 29:31
  Speaker 1: I want to put a finer point on this. So
• 29:32
  Speaker 1: I'm going to make up an imaginary person for this example.
• 29:36
  Speaker 1: But let's say Biden does a bunch of preemptive pardons
• 29:39
  Speaker 1: for people. who worked in his administration, did the things
• 29:43
  Speaker 1: that he asked them to do, did them legally. And then,
• 29:47
  Speaker 1: so it's a blanket pardon. And then we find out
• 29:51
  Speaker 1: a year from now that this imaginary person had just
• 29:53
  Speaker 1: made up embezzled money from the federal government. that person
• 29:57
  Speaker 1: could not be prosecuted if it happened during the period
• 29:59
  Speaker 1: of time in which the pardon was issued?
• 30:00
  Speaker 2: I mean, it depends on how the pardon is written,
• 30:02
  Speaker 2: if it's sort of broadly any crimes during this period
• 30:05
  Speaker 2: of time, like the Hunter Biden pardon, for example. I
• 30:08
  Speaker 2: think that's a real question. I think that's a real,
• 30:10
  Speaker 2: I mean, obviously, that isn't perhaps what the president is
• 30:13
  Speaker 2: contemplating in issuing this pardon to someone who works for him.
• 30:18
  Speaker 2: I think it's likely to insulate that individual from legal
• 30:22
  Speaker 2: liability going forward for things done in the scope of
• 30:25
  Speaker 2: that person's job. But if the pardon is written broadly,
• 30:28
  Speaker 2: it could include these things that fall outside of the
• 30:30
  Speaker 2: perimeter of that person's job. And then I think you
• 30:33
  Speaker 2: definitely have a circumstance where we're teed up for some
• 30:36
  Speaker 2: kind of legal challenge, maybe one that even goes to
• 30:38
  Speaker 2: the Supreme Court. But again, the power is absolute until
• 30:42
  Speaker 2: the court says it's not.
• 30:44
  Speaker 1: Given what Trump said on Meet the Press, given the
• 30:47
  Speaker 1: people he's appointing, Kash Patel, Pam Bondi, Do you think
• 30:52
  Speaker 1: Biden should issue these pardons? Would it be a good idea?
• 30:54
  Speaker 1: And if so, how should he go about doing it?
• 30:56
  Speaker 2: I think there's definitely a case to be made to
• 30:59
  Speaker 2: do it for individuals within the administration, sort of rank
• 31:01
  Speaker 2: and file workers who are not covered by the immunity decision,
• 31:05
  Speaker 2: who might likely be prosecuted or targeted by the next administration.
• 31:10
  Speaker 2: I think for some of the more high profile people
• 31:13
  Speaker 2: like Adam Schiff or Liz Cheney, That's a harder question
• 31:17
  Speaker 2: in large part because those individuals don't seem to want pardons,
• 31:20
  Speaker 2: or at least Adam Schiff doesn't, because a pardon suggests
• 31:24
  Speaker 2: that the conduct for which you are being pardoned was
• 31:26
  Speaker 2: actually criminal, and they don't believe that their actions were criminal.
• 31:30
  Speaker 2: In fact, their actions are not criminal. And so, you know,
• 31:34
  Speaker 2: there is a kind of signaling that goes on when
• 31:37
  Speaker 2: one receives a pardon. I mean, think about the way
• 31:39
  Speaker 2: we have talked about the Roger Stone pardon or, you know,
• 31:43
  Speaker 2: Paul Manafort. I think there is... Some fear that there
• 31:47
  Speaker 2: is a signaling effect and being lumped in with a
• 31:49
  Speaker 2: group of people to whom pardons had been issued would
• 31:52
  Speaker 2: suggest that you are someone who is a criminal and
• 31:54
  Speaker 2: they're not willing to take that step. But again, it
• 31:58
  Speaker 2: might actually be something we're thinking about for some of
• 32:01
  Speaker 2: these rank and file people who genuinely were just doing
• 32:04
  Speaker 2: their jobs and are likely to be targeted.
• 32:08
  Speaker 1: Yeah, I've been really torn on this one. The signaling
• 32:10
  Speaker 1: issue is real. Like I put myself in the position
• 32:12
  Speaker 1: of what if Donald Trump had issued a bunch of
• 32:14
  Speaker 1: these on the way out the door?
• 32:15
  Speaker 3: Yeah.
• 32:15
  Speaker 1: We would assume all of that. We assume that was
• 32:18
  Speaker 1: just basically an admission of guilt in all– and very
• 32:21
  Speaker 1: well might have been, right, given the history of the
• 32:23
  Speaker 1: people he pardoned or was likely to pardon in that
• 32:25
  Speaker 1: hypothetical situation. But then also, it is– I mean, the
• 32:30
  Speaker 1: Kash Patel situation, and speaking of nominees who seem to
• 32:32
  Speaker 1: be cruising to confirmation, is a very dangerous situation. And
• 32:37
  Speaker 1: I mean, you can speak to this better than I can,
• 32:39
  Speaker 1: but when a law enforcement– goes digging around, if they
• 32:44
  Speaker 1: want to find a crime to charge, they often can
• 32:47
  Speaker 1: find a crime to charge. Because what's the saying about
• 32:49
  Speaker 1: indicting a ham sandwich?
• 32:50
  Speaker 2: Yeah, like a grand jury will indict a ham sandwich.
• 32:53
  Speaker 2: Like the standard for a grand jury indictment is so
• 32:55
  Speaker 2: low that it's very easy. Yeah, I think that's right.
• 32:59
  Speaker 2: And again, I know you've talked about the Hunter Biden
• 33:05
  Speaker 2: pardon on the pod.
• 33:06
  Speaker 1: Yeah, I want to get your take on that.
• 33:07
  Speaker 2: Oh, sure, sure. Again, I think It is very likely
• 33:12
  Speaker 2: that there would have been additional targeting of Hunter Biden
• 33:15
  Speaker 2: in the incoming administration. And so it makes sense. I'm
• 33:19
  Speaker 2: not especially mad at President Biden for doing this. I
• 33:23
  Speaker 2: actually think the outcry among Democrats about the Hunter Biden
• 33:28
  Speaker 2: pardon is largely because it speaks to another impulse that
• 33:34
  Speaker 2: Joe Biden has that I think people would like to
• 33:37
  Speaker 2: be really mad about. and for whatever reason, just cannot.
• 33:42
  Speaker 2: And that's, Joe Biden often says he's not going to
• 33:45
  Speaker 2: do things. And then over some period of time, manages
• 33:50
  Speaker 2: to reconsider and to prioritize his own personal interest in
• 33:54
  Speaker 2: doing something over the principle that he previously stated. And so,
• 33:57
  Speaker 2: you know, Hunter Biden's pardon after Joe Biden expressly disclaimed
• 34:03
  Speaker 2: the prospect of a pardon for him also, I think,
• 34:06
  Speaker 2: reflects the way Democrats might feel about the fact that
• 34:08
  Speaker 2: Joe Biden said he was going to be a one-term
• 34:10
  Speaker 2: president and a bridge to the future and then ultimately
• 34:13
  Speaker 2: decided to run again when he likely should not have. And,
• 34:18
  Speaker 2: you know, now we are on the precipice of a
• 34:20
  Speaker 2: second Trump administration. I mean, I think that's really what
• 34:23
  Speaker 2: has people mad, not the pardon itself, but this idea
• 34:26
  Speaker 2: that it kind of speaks to a personal proclivity that
• 34:31
  Speaker 2: is just not great and has actually been harmful in
• 34:34
  Speaker 2: some way.
• 34:36
  Speaker 1: Yeah, I've really sort of gone through a process on this.
• 34:38
  Speaker 1: Before the election, I said to my, I sort of
• 34:41
  Speaker 1: thought to myself, he should definitely pardon his son, right?
• 34:43
  Speaker 1: Especially I was in my head, it's like Kamala Harris wins,
• 34:46
  Speaker 1: he stepped aside, he did this, let him have this.
• 34:49
  Speaker 1: And then when he did it, I was initially mad
• 34:53
  Speaker 1: at the way he did it. I was mad at
• 34:54
  Speaker 1: the timing. I was mad at that you just sort
• 34:56
  Speaker 1: of initially- I mean, I broke that news.
• 34:58
  Speaker 2: Like, I was the one on MSNBC, like, just filling
• 35:00
  Speaker 2: in for someone after Thanksgiving. And they're like, by the way,
• 35:03
  Speaker 2: there's some breaking in. I'm like, really?
• 35:05
  Speaker 1: Right, on a Sunday night.
• 35:06
  Speaker 2: On a Sunday night.
• 35:06
  Speaker 1: After Thanksgiving. Without explaining it or defending it, right? And
• 35:10
  Speaker 1: that put the Democratic Party in a tough, his defender,
• 35:13
  Speaker 1: people who want to defend him put in a tough
• 35:14
  Speaker 1: position because he did not articulate his reason. I thought
• 35:17
  Speaker 1: that was sort of political.
• 35:18
  Speaker 2: Well, he did issue the statement. Right.
• 35:21
  Speaker 1: But you sort of like in, this is not, you know, 1928,
• 35:23
  Speaker 1: like you've got to go on camera and defend it.
• 35:26
  Speaker 2: Right away.
• 35:27
  Speaker 1: He has paid to the extent that he can pay
• 35:28
  Speaker 1: a political price or there's a poll out this week
• 35:32
  Speaker 1: that shows that two in 10 Americans support the party.
• 35:34
  Speaker 2: Yeah.
• 35:35
  Speaker 1: When I think that number could be higher if he
• 35:36
  Speaker 1: had gone out and defended it.
• 35:38
  Speaker 2: Yeah. And explained.
• 35:38
  Speaker 1: As he wrote in the thing.
• 35:39
  Speaker 3: Right.
• 35:40
  Speaker 1: As a president and a father. And the more I
• 35:42
  Speaker 1: thought about this, If I was sitting there with the
• 35:45
  Speaker 1: power to keep my son out of prison for a
• 35:47
  Speaker 1: nonviolent crime for which I believed he had been prosecuted
• 35:52
  Speaker 1: for primarily because he was my son, I would do
• 35:54
  Speaker 1: the same thing for my son, my daughter. Like I
• 35:56
  Speaker 1: would have done that. And I think you could probably
• 35:57
  Speaker 1: explain that to people. Maybe that's right. Maybe that's wrong.
• 36:00
  Speaker 1: But the reason why people are mad, you're right about this.
• 36:02
  Speaker 1: It's a proxy for, and I think this was my
• 36:05
  Speaker 1: initial reaction too. It's that people are mad at Biden.
• 36:09
  Speaker 1: Democrats are mad at Biden for the position.
• 36:11
  Speaker 2: Yeah.
• 36:12
  Speaker 1: That he put us in this election by running for
• 36:14
  Speaker 1: reelection and then waiting a month after that debate.
• 36:16
  Speaker 2: To stay in the race. Prioritizing his own personal interests
• 36:19
  Speaker 2: over principle or party. And I'm going to catch strays
• 36:22
  Speaker 2: from all the fans who, but I do think that's
• 36:25
  Speaker 2: what people are mad about. I think people understand as
• 36:27
  Speaker 2: a father why you would do this. I think people
• 36:30
  Speaker 2: understand that this was like the most uncomfortable Thanksgiving in
• 36:33
  Speaker 2: Nantucket ever with Jill and Hunter like just on him.
• 36:38
  Speaker 2: I think the statement also, I think Hunter had something
• 36:41
  Speaker 2: to do with the statement. Like not all of that
• 36:43
  Speaker 2: is Joe Biden's voice, I think. I think some of
• 36:46
  Speaker 2: that is very clearly coming from the family. I just
• 36:49
  Speaker 2: imagine Joe Biden like that Ben Affleck meme, like, you know,
• 36:53
  Speaker 2: on the porch after Thanksgiving, furiously smoking because he is like,
• 36:57
  Speaker 2: he has been getting it all weekend. And yeah, this
• 37:00
  Speaker 2: is the output. But I don't think that's why people
• 37:02
  Speaker 2: are mad. And I don't think that's why people don't
• 37:04
  Speaker 2: support this part. And it's something bigger.
• 37:07
  Speaker 1: Do you think this is a pardon that could be challenged?
• 37:10
  Speaker 2: Again, the Supreme Court has already said that the pardon power.
• 37:13
  Speaker 1: But it's written broadly in a way.
• 37:14
  Speaker 2: It's written very broadly. I mean, it's a 10-year span.
• 37:19
  Speaker 2: And yeah, I think it could be challenged, but I
• 37:21
  Speaker 2: think it's unlikely to be challenged. And I think if
• 37:23
  Speaker 2: it were to go to the Supreme Court, I think
• 37:25
  Speaker 2: this is pretty airtight. I think the court would have
• 37:28
  Speaker 2: to really go back on some of its prior precedents
• 37:34
  Speaker 2: talking about pardons, including the immunity decision in order to
• 37:37
  Speaker 2: undo this. Yeah.
• 37:39
  Speaker 1: It would also be remiss of us not to mention
• 37:41
  Speaker 1: the fact in any conversation about pardons that Joe Biden's
• 37:43
  Speaker 1: going to issue is that Donald Trump has pledged once
• 37:46
  Speaker 1: again to issue pardons for the January 6th rioters when
• 37:50
  Speaker 1: he gets into office?
• 37:51
  Speaker 2: Well, I mean, I think this is something Joe Biden
• 37:53
  Speaker 2: really should get on right now. Not the January 6th
• 37:56
  Speaker 2: protesters and their pardons, but the clemency power is woefully
• 38:00
  Speaker 2: underutilized by presidents. And there are a lot of people,
• 38:04
  Speaker 2: low-level drug offenders in federal prisons, people who are hemmed
• 38:08
  Speaker 2: up on conspiracy charges, like women who have conspiracy charges
• 38:12
  Speaker 2: because they may have been around while their boyfriend was
• 38:14
  Speaker 2: doing major kingpin stuff. That happens all the time. And
• 38:17
  Speaker 2: there are lots of people in federal prison who could
• 38:20
  Speaker 2: benefit from the kind of rehabilitative and redemptive instinct that
• 38:25
  Speaker 2: has benefited Hunter Biden and will likely benefit these January
• 38:29
  Speaker 2: 6th protesters. And I think this is the moment not
• 38:32
  Speaker 2: just to preemptively pardon those in the administration who are
• 38:34
  Speaker 2: likely to be targeted, but to use the clemency power
• 38:37
  Speaker 2: to meaningfully affect the lives of a lot of other people,
• 38:41
  Speaker 2: many of whom are black and brown. I think one
• 38:43
  Speaker 2: of the reasons, and again, this is just me riffing,
• 38:46
  Speaker 2: I think one of the reasons that Donald Trump did
• 38:49
  Speaker 2: better than expected with some constituencies, including black men, is
• 38:53
  Speaker 2: that he actually used the pardon power a lot for
• 38:57
  Speaker 2: Kwame Kilpatrick, the embattled mayor of Detroit who had been convicted.
• 39:02
  Speaker 2: I mean, that stuff I think is actually meaningful in
• 39:05
  Speaker 2: communities where the impact of the criminal justice system is
• 39:08
  Speaker 2: deeply and keenly felt.
• 39:10
  Speaker 1: And not to mention, he worked with one of the
• 39:13
  Speaker 1: most famous people in the world on many of those pardons, U.S.
• 39:15
  Speaker 1: pardon attorney, Kim Kardashian. It was on multiple episodes of
• 39:19
  Speaker 1: the Kardashians.
• 39:19
  Speaker 2: Attorney is a generous term for this, but yes.
• 39:22
  Speaker 1: Yeah. I mean, there was a lot of coverage in
• 39:25
  Speaker 1: social media. There was her in the White House. It
• 39:27
  Speaker 1: was on literally multiple episodes. It was It was a
• 39:30
  Speaker 1: season arc on meeting the God, came out with the Kardashians.
• 39:34
  Speaker 1: That is a meaningful.
• 39:35
  Speaker 2: Thing that you can do in a community literally scarred
• 39:39
  Speaker 2: by its, it's, associations with the criminal justice system. Like,
• 39:44
  Speaker 2: I mean, like a redemption story that could be really
• 39:47
  Speaker 2: important for Democrats going forward.
• 40:02
  Speaker 1: This is something that has been eating at me since
• 40:03
  Speaker 1: the election. I've been meaning to talk to someone smart
• 40:06
  Speaker 1: about it. I now have you here. So I'm going
• 40:08
  Speaker 1: to use podcast co-host privilege to get into this. But
• 40:11
  Speaker 1: think about it this way. And this is a very
• 40:13
  Speaker 1: painful way to look at it. But if there had
• 40:15
  Speaker 1: just been a shift of two points in Michigan, Pennsylvania,
• 40:18
  Speaker 1: and Wisconsin, Donald Trump could very well be headed to
• 40:21
  Speaker 1: prison instead of the White House. Now, it probably seems
• 40:24
  Speaker 1: bizarre to the average American, not that I consider myself
• 40:26
  Speaker 1: the average American, but should winning an election really be
• 40:30
  Speaker 1: a get-out-of-jail-free card? So I wanted to go through with you,
• 40:33
  Speaker 1: who is once again an actual expert, what is going
• 40:35
  Speaker 1: to happen with Trump's criminal cases. And I wanted to
• 40:37
  Speaker 1: start with the crimes for which Trump has already been convicted.
• 40:40
  Speaker 1: The hush money trial in Manhattan. and Trump's attorneys are
• 40:43
  Speaker 1: trying to dismiss the conviction. Manhattan DA Alvin Bragg laid
• 40:47
  Speaker 1: out some alternative scenarios, including treating Trump like he's dead.
• 40:50
  Speaker 1: Can you explain to us laypeople what is happening there?
• 40:53
  Speaker 2: OK, so Alvin Bragg, I want to be really clear
• 40:55
  Speaker 2: about this. Alvin Bragg is standing on business and defending
• 40:59
  Speaker 2: his conviction. So the first thing that he has been
• 41:01
  Speaker 2: very clear about with Justice Marchand is that dismissing this
• 41:05
  Speaker 2: indictment after a trial and a guilty verdict because the
• 41:08
  Speaker 2: defendant later won an election would actually damage the judicial system.
• 41:13
  Speaker 2: It would undermine the public's perception that the system is
• 41:15
  Speaker 2: fair because it would be like winning an election is
• 41:18
  Speaker 2: a get out of jail free card. So he has
• 41:19
  Speaker 2: made that argument. Nevertheless, I think there is broad consensus
• 41:25
  Speaker 2: among law school professors, constitutional law scholars, that you can't
• 41:30
  Speaker 2: have a state criminal prosecution of a president while he's
• 41:34
  Speaker 2: in office for a number of different reasons. Some of
• 41:36
  Speaker 2: this has been fleshed out by the Supreme Court, but
• 41:39
  Speaker 2: in the context of civil cases, but criminal cases where
• 41:42
  Speaker 2: the stakes are just higher.
• 41:43
  Speaker 1: You mean the Paula Jones case?
• 41:44
  Speaker 2: Yes, Clinton versus Jones. And the stakes are just higher
• 41:47
  Speaker 2: in a criminal case. So, I mean, I think there
• 41:49
  Speaker 2: is an argument to be made that while he is president,
• 41:53
  Speaker 2: that can't happen. Now, to be clear, Alvin Bragg has
• 41:56
  Speaker 2: been very straightforward that he is not the president right now.
• 41:59
  Speaker 2: He is the president-elect. There is no immunity for the president-elect.
• 42:04
  Speaker 2: And for that reason, you could have the sentencing happen
• 42:08
  Speaker 2: now in advance of January 20th. And then you could
• 42:11
  Speaker 2: sort of hold the sentence and the fulfillment of it
• 42:15
  Speaker 2: in abeyance until the end of his term. So Alvin
• 42:18
  Speaker 2: Bragg lays out two possible paths for this. So again,
• 42:22
  Speaker 2: one is just suspending the case until Trump's term is over,
• 42:27
  Speaker 2: like maybe sentencing him now and suspending that, the completion
• 42:30
  Speaker 2: of the sentence until his term in office is over,
• 42:33
  Speaker 2: or alternatively, not sentencing him now and holding all of
• 42:38
  Speaker 2: it over until after the completion of his sentence All
• 42:42
  Speaker 2: of that are possibilities. There's a second option, and this
• 42:46
  Speaker 2: goes to your treat him like a dead man point.
• 42:50
  Speaker 2: The prosecutors, and this is kind of an interesting point,
• 42:53
  Speaker 2: they suggested that Judge Merchan could look to what is
• 42:56
  Speaker 2: known as abatement, which is a procedure by which when
• 42:59
  Speaker 2: a defendant dies after a verdict has been issued but
• 43:02
  Speaker 2: other aspects of the case remain pending, you just sort
• 43:05
  Speaker 2: of abate the prosecution, and that preserves the conviction of
• 43:09
  Speaker 2: but ends any further proceedings. And I think that's sort
• 43:13
  Speaker 2: of the last best scenario for Alvin Bragg because it
• 43:15
  Speaker 2: makes clear that this was a sound conviction. It holds
• 43:19
  Speaker 2: as a conviction. It just kind of kills everything else,
• 43:21
  Speaker 2: including the sentencing, going forward. So he's offered a couple
• 43:24
  Speaker 2: of different paths for Judge slash Justice Murchon. He's actually
• 43:28
  Speaker 2: Justice because he's a New York trial court justice.
• 43:31
  Speaker 3: Oh, sorry.
• 43:31
  Speaker 2: I messed that up.
• 43:32
  Speaker 1: I apologize.
• 43:33
  Speaker 2: No, I mean, nobody knows. It's kind of vigor-y.
• 43:35
  Speaker 1: There was a period of time in my life when
• 43:37
  Speaker 1: I knew that, and I had wiped it from my brain.
• 43:39
  Speaker 2: Well, I mean, as you should. But I think, again,
• 43:42
  Speaker 2: that's sort of the TLDR of it. And I think
• 43:44
  Speaker 2: the real bottom line is Alvin Bragg is really working
• 43:48
  Speaker 2: to preserve this verdict and the conviction that flows from it.
• 43:53
  Speaker 1: As he should. It's insane that they would dismiss the
• 43:56
  Speaker 1: conviction because they didn't know he was going to be
• 43:58
  Speaker 1: president when they did it. Like, that's insane. It is insane.
• 44:02
  Speaker 1: That is one of the things that makes zero sense
• 44:05
  Speaker 1: to human beings. He committed a crime. A jury of
• 44:07
  Speaker 1: his peers heard the evidence. They rendered a verdict. And
• 44:11
  Speaker 1: then afterwards, we're like, oh, sorry, guys. We didn't realize
• 44:14
  Speaker 1: how important he was. So we're going to take that
• 44:17
  Speaker 1: one off the books. That would be insane.
• 44:19
  Speaker 2: Yeah.
• 44:19
  Speaker 1: And so I certainly hope Justice Mershon or the judges
• 44:22
  Speaker 1: who are hearing this do not do that because that
• 44:25
  Speaker 1: is nuts.
• 44:27
  Speaker 3: Okay. Okay.
• 44:28
  Speaker 1: I'm also curious about the Fulton County prosecution. This one
• 44:30
  Speaker 1: sort of got lost in a whole bunch of minutiae
• 44:34
  Speaker 1: and hearings and such, but it is a local, not
• 44:37
  Speaker 1: a federal case. Trump can't fire Fannie Willis or direct
• 44:40
  Speaker 1: her not to prosecute him. What's the latest with that case?
• 44:43
  Speaker 1: Is it possible they could just put it on pause until...
• 44:46
  Speaker 1: Trump's out of office?
• 44:47
  Speaker 2: Well, I mean, that case has already been kind of
• 44:51
  Speaker 2: mired in all of this procedural stuff. So you'll recall
• 44:54
  Speaker 2: that Willis had all of those ethics concerns because she
• 44:57
  Speaker 2: had appointed her then-boyfriend to be part of the prosecution team.
• 45:02
  Speaker 2: She was told by the trial judge that she could
• 45:05
  Speaker 2: stay on the case as long as her boyfriend resigned
• 45:08
  Speaker 2: from it, and that happened. But then a state appeals
• 45:11
  Speaker 2: court was scheduled to review that question of whether or
• 45:15
  Speaker 2: not she could remain on the case. They were scheduled
• 45:17
  Speaker 2: to consider whether she could do so this month, but
• 45:20
  Speaker 2: they recently canceled that hearing after the election because Donald
• 45:25
  Speaker 2: Trump won, and Trump obviously denies wrongdoing here. What happens next,
• 45:29
  Speaker 2: I think, is really unclear. If the appeals court decides
• 45:35
  Speaker 2: that Fannie Willis is disqualified and cannot remain on the case,
• 45:39
  Speaker 2: then the prosecution goes to a state board of prosecutors
• 45:43
  Speaker 2: who decide whether or not the case is going to continue.
• 45:45
  Speaker 2: And if it does continue, they'll assign a new prosecutor.
• 45:49
  Speaker 2: This has typically been a scenario where cases go to die. Like,
• 45:53
  Speaker 2: I mean, there are currently cases pending. One involving Fannie Willis,
• 45:56
  Speaker 2: from which she was disqualified because she had held a
• 45:59
  Speaker 2: fundraiser or participated in a fundraiser for someone who was
• 46:02
  Speaker 2: involved in the case. That case was never staffed up
• 46:05
  Speaker 2: with a prosecutor. It took a very long time for
• 46:07
  Speaker 2: that to be worked out. So that's a place where
• 46:10
  Speaker 2: a delay could be indefinite. And, you know, the case
• 46:14
  Speaker 2: could be killed entirely or the effort to find a
• 46:16
  Speaker 2: new prosecutor could delay it substantially. Even absent those considerations,
• 46:22
  Speaker 2: there's still the looming question of the Supreme Court's decision
• 46:25
  Speaker 2: in the immunity case, which does impact the Fannie Willis
• 46:29
  Speaker 2: prosecution because much of that conduct for which Donald Trump
• 46:34
  Speaker 2: and others were indicted occurred while he was president. And
• 46:38
  Speaker 2: so you have the same kind of questions that attend
• 46:41
  Speaker 2: the Jack Smith prosecutions and the January 6th election interference case.
• 46:46
  Speaker 2: Is this within the scope of the president's duties? Is
• 46:48
  Speaker 2: it in the outside perimeter? What's official? What's unofficial? So
• 46:52
  Speaker 2: I just don't have a lot of faith that there's
• 46:54
  Speaker 2: much that's going to happen in that case.
• 46:56
  Speaker 1: So don't circle 2029 on my calendar as a fun year.
• 47:02
  Speaker 1: You're to be in Atlanta.
• 47:03
  Speaker 2: I don't think this is... Yeah, I mean... This is,
• 47:06
  Speaker 2: I would not buy a ticket to Atlanta necessarily.
• 47:08
  Speaker 3: Okay.
• 47:08
  Speaker 1: All right. For this reason, at least. There are a
• 47:10
  Speaker 1: lot of other good reasons to go to Atlanta.
• 47:11
  Speaker 3: Okay.
• 47:12
  Speaker 1: Special counsel Jack Smith plans to resign before Trump can
• 47:15
  Speaker 1: fire him. And so both the classified documents in January
• 47:19
  Speaker 1: 6th cases, which at the time seemed kind of open
• 47:22
  Speaker 1: and shut before the Supreme Court got involved, will simply
• 47:24
  Speaker 1: disappear forever without Trump ever facing accountability. What do you
• 47:27
  Speaker 1: make of Smith's decision? Why is he resigning?
• 47:30
  Speaker 2: I think he's going to resign because he otherwise would
• 47:32
  Speaker 2: be fired by Donald Trump on January 20th. So this
• 47:35
  Speaker 2: sort of allows him to step back. He gets out
• 47:38
  Speaker 2: of it. It allows the prosecution to be wound up
• 47:41
  Speaker 2: and perhaps a report to be issued by the DOJ.
• 47:44
  Speaker 2: So there's time to prepare that report. And then for
• 47:47
  Speaker 2: the attorney general to issue it, maybe issue it to
• 47:50
  Speaker 2: the public. So I think that might be part of
• 47:52
  Speaker 2: the calculus here. Those cases were dismissed without prejudice, which
• 47:57
  Speaker 2: means that the judges have made no statement about the
• 48:01
  Speaker 2: merits of the underlying charges or whether the prosecution would
• 48:05
  Speaker 2: have been successful or unsuccessful in establishing their case. So,
• 48:08
  Speaker 2: you know, that is something, you know, maybe a democratic
• 48:13
  Speaker 2: president could take this up again in the future. Although
• 48:15
  Speaker 2: I think it's highly unlikely. I think if we get
• 48:18
  Speaker 2: to a democratic president in 2028, I think this country,
• 48:23
  Speaker 2: I would hope would be willing to just like turn
• 48:25
  Speaker 2: the page on this episode and just like, just be
• 48:28
  Speaker 2: done with it and like move on and like to
• 48:30
  Speaker 2: something better. I would hope.
• 48:32
  Speaker 1: I mean, I know this is just tilting at windmills here,
• 48:34
  Speaker 1: but it is just, I know that he's going to
• 48:37
  Speaker 1: get away with all of it. I mean, I, I mean,
• 48:41
  Speaker 1: he may face political accountability in the end here.
• 48:43
  Speaker 3: Maybe.
• 48:43
  Speaker 1: The Republican Party may end up facing political accountability in
• 48:45
  Speaker 1: the end here, but it's just that you can win
• 48:48
  Speaker 1: an election and all your crimes go away. Because you
• 48:51
  Speaker 1: can fire... And this is... Jack Smith seems like to
• 48:55
  Speaker 1: be a man beyond reproach, but stay on and get fired.
• 48:58
  Speaker 1: Make Trump fire the special counsel, right? At least get
• 49:01
  Speaker 1: the echo of Watergate. Make him take the action to
• 49:04
  Speaker 1: dismiss the crimes against him. Like that... That's what I
• 49:09
  Speaker 1: would do if I was him.
• 49:10
  Speaker 2: Maybe he's literally winding this up and heading back to
• 49:13
  Speaker 2: The Hague in the hopes that he will not be
• 49:15
  Speaker 2: extradited by Kash Patel. Maybe.
• 49:18
  Speaker 1: I mean, maybe he is busy packing his boxes to
• 49:20
  Speaker 1: move to a non-extradition country. That's exactly right. Maybe that
• 49:23
  Speaker 1: is what he's doing. I guess he does. It's easy
• 49:25
  Speaker 1: for me to say that I would stay on and
• 49:26
  Speaker 1: get fired when I am not specifically mentioned, to my knowledge,
• 49:30
  Speaker 1: in Kash Patel's book. So maybe that is what he's doing.
• 49:35
  Speaker 1: I do have to ask because... I know Merrick Garland,
• 49:41
  Speaker 1: in his time as a judge, was sort of revered
• 49:44
  Speaker 1: as one of the all-time greats. But it really feels
• 49:47
  Speaker 1: to me like he really screwed the pooch here. If
• 49:50
  Speaker 1: he had started the January 6th investigation earlier, we could
• 49:53
  Speaker 1: have at least had a resolution before Election Day. He
• 49:55
  Speaker 1: waited until basically Liz Cheney and Adam Kinzinger bullied him
• 49:57
  Speaker 1: into doing a prosecution here. What is your take on
• 50:00
  Speaker 1: his approach? Has he damaged his legacy here?
• 50:02
  Speaker 2: I mean, I think Merrick Garland, as a judge, was
• 50:08
  Speaker 2: one of the greats. Yeah, he was a great judge
• 50:11
  Speaker 2: in large part because he was deliberative, he was contemplative.
• 50:16
  Speaker 2: And those qualities that made him a great judge made
• 50:19
  Speaker 2: him a terrible attorney general for this moment. And that's unfortunate.
• 50:24
  Speaker 2: I think a different attorney general would have taken a
• 50:26
  Speaker 2: different tack here. I mean, the strategy of pursuing the
• 50:30
  Speaker 2: rank and file January 6th protesters first and then sort
• 50:34
  Speaker 2: of going up the chain And then starting late on
• 50:38
  Speaker 2: some of those rank and file protests. I mean, it
• 50:41
  Speaker 2: was all going to come down to the election. And
• 50:44
  Speaker 2: maybe that was by design. Maybe they felt that this
• 50:47
  Speaker 2: should have been something that was sort of left to
• 50:49
  Speaker 2: the voters to decide. And the voters have decided. But
• 50:53
  Speaker 2: there's also an argument to be made that a different
• 50:55
  Speaker 2: attorney general might have started and gone top down. And
• 50:58
  Speaker 2: that would have been a more effective strategy, at least
• 51:00
  Speaker 2: for resolving the The one thing that really strikes me
• 51:03
  Speaker 2: as deeply problematic about these cases not getting to trial
• 51:07
  Speaker 2: is that trials are a mechanism for surfacing and ventilating
• 51:12
  Speaker 2: information to the public. And I think the public had
• 51:17
  Speaker 2: a right to hear the case against Donald Trump and
• 51:21
  Speaker 2: to judge whether the government had met its burden to
• 51:25
  Speaker 2: establish guilt beyond a reasonable doubt. Like, Some would say
• 51:29
  Speaker 2: that the January 6th special committee did some of that,
• 51:33
  Speaker 2: had a kind of public airing of that, but that
• 51:35
  Speaker 2: is really what a trial is for. And I think
• 51:39
  Speaker 2: the public was just served by not having that opportunity.
• 51:43
  Speaker 1: Yeah. I think when the history of this time is written,
• 51:47
  Speaker 1: Merrick Garland is going to be, is not going to
• 51:50
  Speaker 1: be covered in glory.
• 51:51
  Speaker 2: No.
• 51:51
  Speaker 1: Because there, he is just, was not the right person
• 51:53
  Speaker 1: for this moment, right? He is like, you know, to
• 51:56
  Speaker 1: borrow a phrase from the Godfather, he is not a
• 51:58
  Speaker 1: wartime conciliary, right? This was, he does it, he, and
• 52:01
  Speaker 1: I think Biden, to a certain extent, suffers from a
• 52:04
  Speaker 1: similar challenges. They were constitutionally and experientially not- They were institutionalists.
• 52:09
  Speaker 1: Prepared for, institutionalists for this moment against someone like Donald Trump.
• 52:12
  Speaker 1: They thought he was going to go away on his own.
• 52:14
  Speaker 1: Mitch McConnell made the same mistake as this. If you
• 52:16
  Speaker 1: could define this period in one thing, it's a bunch
• 52:18
  Speaker 1: of institutionalists making the wrong decisions about, or misjudging where
• 52:24
  Speaker 1: politics are going and suffering catastrophic consequences for it.
• 52:27
  Speaker 2: Yeah, I think that's a great point. I think they
• 52:29
  Speaker 2: did expect he lost, he's going to, you know, tuck
• 52:31
  Speaker 2: his tail between his legs and go off. No, that's
• 52:34
  Speaker 2: not this guy. This guy has another arc in him.
• 52:38
  Speaker 2: And we're going to see it now. I also think,
• 52:42
  Speaker 2: and this is in the vein of the institutionalists, Joe
• 52:45
  Speaker 2: Biden was I think, more principally focused on rebuilding the
• 52:49
  Speaker 2: DOJ as an independent agency. And for that, maybe Merrick
• 52:53
  Speaker 2: Garland was the perfect person. And the accountability piece probably
• 53:00
  Speaker 2: didn't get attended to. That wasn't top of mind either
• 53:03
  Speaker 2: for the president appointing him nor for the attorney general
• 53:06
  Speaker 2: who would take on the charge. The real charge was
• 53:09
  Speaker 2: rebuilding morale in DOJ and making it independent of the
• 53:12
  Speaker 2: White House. We'll see how that works going forward.
• 53:16
  Speaker 1: There was an interpretation of the 20... I mean, I
• 53:18
  Speaker 1: could honestly talk about this for years, but there was
• 53:21
  Speaker 1: an interpretation of the 2020 election that it was a
• 53:24
  Speaker 1: validation of norms. It was a rejection of norm breakers
• 53:28
  Speaker 1: and anti-institutionalists. And I still think back to a conversation
• 53:32
  Speaker 1: we had on this podcast with our very good friend,
• 53:36
  Speaker 1: Jen Psaki, about being press secretary. And that one of
• 53:39
  Speaker 1: the things that President Biden said to her was that
• 53:41
  Speaker 1: it was very important that she do the press briefing
• 53:45
  Speaker 1: on a daily basis the way it's always been done.
• 53:47
  Speaker 1: Because there's always been this discussion about how you change
• 53:49
  Speaker 1: it to make it meet the modern media environment, but
• 53:50
  Speaker 1: Biden wanted to return to norms. And I understand that instinct.
• 53:53
  Speaker 1: Like it's not wrong, but in hindsight, that's not what
• 53:57
  Speaker 1: that election was about. And the idea, like it was not,
• 54:01
  Speaker 1: the DOJ should be independent. I'm not saying it shouldn't be,
• 54:04
  Speaker 1: but there is actual independence and then there was perception
• 54:07
  Speaker 1: of independence. Following the exact normal process of, Yeah.
• 54:11
  Speaker 2: Yeah.
• 54:29
  Speaker 1: And you were never going to convince a lot of
• 54:31
  Speaker 1: people that the Justice Department was actually independent. So you've
• 54:34
  Speaker 1: just got to do your job the right way, the
• 54:35
  Speaker 1: way it's supposed to be done, and let the consequences
• 54:38
  Speaker 1: fall where they may. And I think this is exactly–
• 54:40
  Speaker 1: it's the same mistake that Jim Comey made with that
• 54:43
  Speaker 1: letter to congressional Republicans at the end of the election.
• 54:46
  Speaker 1: It was trying to appease the unappeasable with the illusion
• 54:50
  Speaker 1: of independence when it is not actually independence. It's actually
• 54:53
  Speaker 1: bias for the purpose of showing independence.
• 54:56
  Speaker 2: Yeah, I think that's exactly right.
• 54:59
  Speaker 1: Okay, that unhinged rant for myself is probably a good
• 55:03
  Speaker 1: place to end this. Melissa, thank you so much for
• 55:05
  Speaker 1: joining us.
• 55:06
  Speaker 2: Wait, I have one more hot take. Can I offer
• 55:08
  Speaker 2: one hot take?
• 55:09
  Speaker 1: Oh, go, go. Go, jump in. Go, go, go.
• 55:11
  Speaker 2: I have been listening to Pots of America regularly since
• 55:14
  Speaker 2: the election.
• 55:16
  Speaker 1: I just want to offer- Oh, did you just learn
• 55:18
  Speaker 1: about us?
• 55:20
  Speaker 2: Um, no, more regularly than usual. Like, I mean, now
• 55:23
  Speaker 2: I'm like, I'm tuning in every time.
• 55:25
  Speaker 1: You always listen to the Friday pod. You probably, you're
• 55:27
  Speaker 1: probably mixing in some love it there periodically. I get it.
• 55:30
  Speaker 2: Actually, my husband and I binge it on long drives,
• 55:33
  Speaker 2: but we haven't been driving, like doing long drives recently.
• 55:36
  Speaker 2: So I've actually been doing it while I work out
• 55:37
  Speaker 2: in the morning. And so I've been watching like much
• 55:39
  Speaker 2: more regularly. I usually just like get you all in
• 55:41
  Speaker 2: like two hour chunks, but now it's like, I'm on it.
• 55:44
  Speaker 2: So I want to offer just a take. Like, again,
• 55:46
  Speaker 2: I'm just riffing. I'm not a real political person. So
• 55:50
  Speaker 2: I'm a law professor. But it strikes me living in
• 55:53
  Speaker 2: New York City that this election, and I know lots
• 55:57
  Speaker 2: of people have talked about how New York City is
• 55:58
  Speaker 2: sort of drifting to the right, certainly in the outer boroughs.
• 56:01
  Speaker 2: And I think that's right. I used to live in Oakland, California.
• 56:04
  Speaker 2: Oakland also had a really interesting election. I think you
• 56:08
  Speaker 2: have said this, and I think you're exactly right. This
• 56:10
  Speaker 2: election was marked by real anti-incumbency flavor, and I think
• 56:13
  Speaker 2: that's exactly correct. But I want to just offer a
• 56:16
  Speaker 2: different slant on it from the perspective of someone who
• 56:19
  Speaker 2: lives in a blue state and has lived in blue cities.
• 56:22
  Speaker 2: I don't think the interest in Trump, even in New
• 56:25
  Speaker 2: York City where people are sort of drifting to the red,
• 56:27
  Speaker 2: is a deep-seated interest in Donald Trump. I do think
• 56:31
  Speaker 2: It is perhaps a referendum on the failures of blue state,
• 56:35
  Speaker 2: blue city governance. I see this in Oakland where they
• 56:39
  Speaker 2: recalled the mayor and where everyone in Oakland knows that
• 56:44
  Speaker 2: you can live in a fancy neighborhood and pay a
• 56:46
  Speaker 2: shit ton of taxes and you still have to get
• 56:48
  Speaker 2: a private security force to police your neighborhood because the
• 56:51
  Speaker 2: police don't come. I think people in New York City
• 56:54
  Speaker 2: feel this way. You are paying a ton of taxes
• 56:57
  Speaker 2: in a blue city, in a blue state, And the
• 57:00
  Speaker 2: services are really negligible. You may not feel comfortable sending
• 57:04
  Speaker 2: your kid to public school where the public schools are
• 57:06
  Speaker 2: failing in many respects. The services are not what your
• 57:11
  Speaker 2: compatriots around the country receive in their red states. And
• 57:17
  Speaker 2: things like the subway are not unsafe, but they are
• 57:19
  Speaker 2: unpleasant in many respects. And so the question I think
• 57:22
  Speaker 2: for a lot of people is like, What is blue
• 57:25
  Speaker 2: city governance? What does progressive governance mean? And why should
• 57:29
  Speaker 2: I expand it to the national level? And I think
• 57:31
  Speaker 2: that's a challenge that Democrats really need to take up
• 57:35
  Speaker 2: in this moment when they are in the wilderness. How
• 57:38
  Speaker 2: can we make blue state, blue city governance appealing? I
• 57:41
  Speaker 2: think this is why Jared Polis gets so much airtime,
• 57:44
  Speaker 2: because he's managed to make it look really appealing. In Colorado.
• 57:47
  Speaker 2: And I just don't think it's necessarily appealing in all
• 57:50
  Speaker 2: of these other states. It's not that people are abandoning
• 57:53
  Speaker 2: progressive values. I think they just want government to work
• 57:57
  Speaker 2: better than it does. And if the Democratic Party could
• 58:01
  Speaker 2: kind of lean into that, like how can we make
• 58:04
  Speaker 2: the Democratic Party be the party of doing shit right
• 58:08
  Speaker 2: and better together? It would really go a long way
• 58:12
  Speaker 2: to addressing some of these Trump-curious voters who drifted in
• 58:16
  Speaker 2: this election. That's just my personal take.
• 58:18
  Speaker 1: That's not a hot take. That's a great take.
• 58:19
  Speaker 2: Thank you.
• 58:20
  Speaker 1: That is a great take.
• 58:21
  Speaker 2: As someone who rides the subway.
• 58:22
  Speaker 1: I mean, obviously, I have a lot of friends who
• 58:24
  Speaker 1: live in San Francisco and in Oakland and New York
• 58:28
  Speaker 1: and places in Chicago, places like that. And you hear
• 58:30
  Speaker 1: this all the time, right? Disorder, right? Is everything from
• 58:34
  Speaker 1: riding the subway to... having to get someone to unlock
• 58:38
  Speaker 1: the anti-shoplifting case for your shampoo at CVS, right?
• 58:43
  Speaker 2: Dan, did you read that New York Times article about
• 58:45
  Speaker 2: the Chinese Americans in California who drifted to the right?
• 58:50
  Speaker 2: If you just expunged any kind of ethnic markers, it
• 58:53
  Speaker 2: was basically about everyone living in Los Angeles and Oakland
• 58:58
  Speaker 2: and San Francisco who are like, I just want the
• 59:01
  Speaker 2: city to work. That was basically the whole argument. Like,
• 59:04
  Speaker 2: I want crime to be dealt with. I don't want
• 59:07
  Speaker 2: the police to be over-policing, but I do want them
• 59:10
  Speaker 2: to be doing some policing. I don't want to park
• 59:12
  Speaker 2: my car and have it bipped when I go to
• 59:15
  Speaker 2: the Safeway in downtown Oakland. That's what it read to me.
• 59:19
  Speaker 2: I don't know. Maybe Ben Wickler, whoever runs the DNC,
• 59:23
  Speaker 2: that seems like something they should get on board with.
• 59:25
  Speaker 1: Yeah, I think absolutely. In our analysis of it, that
• 59:28
  Speaker 1: is a big part of, especially those huge shifts in California,
• 59:33
  Speaker 1: New York, New Jersey, places like that. It's worth looking at.
• 59:35
  Speaker 2: Okay. All right. We're not trying to date Republicans. That's
• 59:37
  Speaker 2: not what we're saying. We just want things to work better.
• 59:40
  Speaker 1: Is that a thing? I don't even know.
• 59:42
  Speaker 2: I mean, we started with Luigi and his mugshot. I
• 59:45
  Speaker 2: think we should end right here. No one's trying to
• 59:46
  Speaker 2: date Republicans. I learned that on hysteria too. Okay.
• 59:49
  Speaker 1: A couple of quick things before we go. If you
• 59:51
  Speaker 1: love hearing Melissa on today's show, I would urge you
• 59:53
  Speaker 1: to check out her podcast, Strict Scrutiny, with her co-hosts,
• 59:56
  Speaker 1: Leah Lippman and Kate Shaw. Every week, they break down
• 59:59
  Speaker 1: SCOTUS arguments, no law degree required. In the latest episode,
• 1:00:02
  Speaker 1: they dive into the court's big case on gender-affirming care
• 1:00:05
  Speaker 1: for minors. Melissa, anything you'd like to add?
• 1:00:08
  Speaker 2: We are so into this moment at the court. I
• 1:00:12
  Speaker 2: just want to be really clear about it. The court
• 1:00:13
  Speaker 2: is going to be like a bag of dicks for
• 1:00:16
  Speaker 2: the next four years. But- We are totally committed to
• 1:00:20
  Speaker 2: making it understandable to you, pointing out when they are
• 1:00:24
  Speaker 2: being inconsistent, pointing out when they have emotional support billionaires.
• 1:00:28
  Speaker 2: The court is something I think feels really inaccessible. It's not.
• 1:00:32
  Speaker 2: You've got to get in it. This is where good
• 1:00:34
  Speaker 2: policy goes to die, and you've got to be on
• 1:00:37
  Speaker 2: top of it. So tune in to Strict Scrutiny every Monday.
• 1:00:41
  Speaker 1: I love Strict Scrutiny, not just on long car drives.
• 1:00:43
  Speaker 1: I listen to it all the time. Catch Strict Scrutiny
• 1:00:46
  Speaker 1: every Monday wherever you get your podcasts. Also, we just
• 1:00:50
  Speaker 1: announced new Love It or Leave It LA dates for
• 1:00:52
  Speaker 1: spring 2025. Join Love It every Thursday starting January 9th.
• 1:00:56
  Speaker 1: He'll be sifting through the week's most important and absurd
• 1:00:58
  Speaker 1: news stories, skewering the biggest names in politics, and sitting
• 1:01:01
  Speaker 1: down with a special celebrity guest for a one-on-one conversation
• 1:01:04
  Speaker 1: you won't want to miss. We have some big names
• 1:01:06
  Speaker 1: for the first few shows, including Joel McHale and Rachel Bloom.
• 1:01:09
  Speaker 1: Head to crooked.com slash events to see dates and grab tickets.
• 1:01:12
  Speaker 1: See you there. That's our show for today. Thanks so much, Melissa,
• 1:01:15
  Speaker 1: for being here. John and I will be back in
• 1:01:17
  Speaker 1: your feeds with a new show on Friday morning. Bye, everyone.
• 1:01:19
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• 1:01:51
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• 1:01:55
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• 1:01:59
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• 1:02:02
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